Balram
Gupta Vs. Union of India & ANR [1987] INSC 235 (1 September 1987)
MUKHARJI,
SABYASACHI (J) MUKHARJI, SABYASACHI (J) OZA, G.L. (J)
CITATION:
1987 AIR 2354 1987 SCR (3)1173 1987 SCC Supl. 228 JT 1987 (3) 480 1987 SCALE
(2)521
CITATOR
INFO :
F
1989 SC1083 (8)
ACT:
Central
Civil Services (Pension) Rules, 1972: Rule 48A(4)--Notice of voluntary
retirement--Withdrawal of--When permissible.
Civil
Services: Civil Servant--Withdrawal of notice of voluntary retirement--Whether
permissible.
HEADNOTE:
The
appellant offered to resign voluntarily from his service by letter dated 24th
December. 1980 with effect from 31st March, 1981 under Rule 48A of the Central
Civil Services (Pension) Rules, 1972, having rendered by then more than 20
years service. The notice period of three months was to commence from 1st
January, 1981. By an order dated 20th January, 1981 he was allowed to retire
voluntarily prospectively with effect from the afternoon of 31st March, 1981.
On
account of personal requests from the staff members the appellant, however,
changed his mind and by his letter dated 31st January, 1981 requested the
authorities that his resignation might be treated as cancelled and the notice
given by him be treated as withdrawn. He was not allowed to do so and was
relieved by an order dated 31st March, 1981.
The
respondent No. 2 informed him that in view of the activities of the appellant
in his capacity as the Secretary of the Employees' Association it has been
found appropriate to ease him out from service.
The
High Court dismissed the appellant's writ petition on the ground that sub-rule
(4) of Rule 48A of the Pension Rules enables the Government servant to withdraw
his application for voluntary retirement only with the approval of the
Government. The approval having not been given the rule had been complied with.
In
this appeal by special leave, it was contended for the appellant that if Rule
48(A) be read as consistent with the constitutional requirements of
reasonableness, which is a well accepted rule of construction, then the
Government could not withhold approval to the withdrawal of 1174 resignation
without any rhyme or reason. For the respondents it was contended that a
Government servant was not entitled to demand as of right permission to withdraw
the letter of Voluntary retirement, it could only be given as a matter of
grace, that it was not in the knowledge of the respondent as to what prompted
the appellant to request the withdrawal, that the application for withdrawal
was considered in the light of the guidelines laid down by O.M. No.
24(57)-E-V-32 dated 24th December, 1952 for considering and deciding in the
matter of accepting or refusing the withdrawals of notice of voluntary
retirement and the request was turned down appropriately, and that once the
notice was given it became operative immediately.
Allowing
the appeal,
HELD:
1.1 There was no valid reason for withholding the permission by the respondent
to the appellant to withdraw his notice of voluntary retirement. [1182H-1183A]
1.2
On the principle of general law that in the absence of a legal, contractual or
constitutional bar an intimation in writing sent to the appropriate authority
by an incumbent, of his intention or proposal to resign his office/post from a
future specified date, can be withdrawn by him at any time before it effects
termination of the tenure of the office/post or employment, the offer of
relinquishment in the instant case, could have been withdrawn by the appellant
before the date it became effective if sub-rule (4) of Rule 48-A was not there.
[1180G-1181A] Union of India v. Shri Gopal Chandra Misra and others, [1978] 3
S.C.R. 12, referred to.
1.3
Sub-rule (4) of Role 48-A of the Pension Rules enjoins that a Government
servant shall be precluded from withdrawing his notice except with the specific
approval of the appointing authority. The proviso to that sub-rule stipulates
that the request for withdrawal shall be made before the intended date of his
retirement. That had been done in the instant case. [1178H-1179A]
1.4
Approval under r. 48A(4) is not ipse dixit of the approving authority. The
approving authority who has the statutory authority must act reasonably and
rationally. The guidelines laid down by O.M. No. 24(57)-E-V-32 dated 24.12.1952
for considering and deciding in the matter of accepting or refusing the
withdrawal of notices of voluntary 1175 retirement are that ordinarily
permission should not be granted unless the officer concerned is in a position
to show that there has been a material change in the circumstances in
consideration of which the notice was originally given. There has been
compliance with these guidelines in the instant case, because the appellant has
indicated that there was a change in the circumstances. In the notice for
resignation he had not given any reason. There was nothing wrong in this. He
has stated that the persistent and personal requests from the staff members and
relations had changed his attitude towards continuing in Government service and
induced him to withdraw the notice. This was not an unreasonable reason.
[1181G, 1179FG, 1182E, 1183AB, 1182F, 1181H]
2.
It cannot be said that once notice was given it became operative immediately,
if it was received by the Government and automatically brought about the
dissolution of contract after the expiry of notice period. The dissolution in
the instant case, would have been brought about only on the date indicated in
the notice, i.e. 31st March, 1981, upto which the appellant was and is a
Government employee.
There
could be no unilateral termination of the same prior thereto. He was at
liberty, and entitled independently without sub-rule (4) of Rule 48-A of the
Pension Rules, as a Government servant to withdraw his notice of voluntary
retirement. In this respect it stands at par with letter of resignation.
[1180A-C]
3.
In the modern age the Court should not put embargo upon people's choice or
freedom. If the administration had made arrangements acting on his resignation
or letter of retirement to make other employee available for his job, that
would have been another matter but the appellant's offer to retire and
withdrawal of the same happened in so quick succession that it cannot be said
that any administrative set up or arrangement was affected. [1182FG] Raj Kumar
v. Union of India, [1968] 3 SCR, 857, referred to.
4.
There should not be arbitrariness and hostile discrimination in Government's
approach to its employees. The Court cannot but condemn circuitous ways to ease
out uncomfortable employees. As a model employer the Government must conduct
itself with high probity and candour with its employees. In the modern and
uncertain age it is very difficult to arrange one's future with any amount of
certainty, a certain amount of flexibility is required, and if such flexibility
does not jeopardize Government or administration, administration should be
graceful enough to respond and acknowledge the flexibility of human mind and
attitude.
[1181BC,
1183C, B] 1176 Air India etc. etc. v. Nergesh Meerza & Ors. etc. etc.,
[1982] 1 S.C.R. 438, referred to.
5.
The appellant in the instant case, is entitled to be put back to his job with
all the consequential benefits being treated as in the job from 31st of March,
1981. [1183DE]
Civil
Appellate Jurisdiction: Civil Appeal No. 2057 of 1987.
From
the Judgment and Order dated 13.7.1987 of the Delhi High Court in Civil Writ
No. 1604 of 1981.
G.D.
Gupta and Ashok K. Mahajan for the Appellant.
G.S.
Shah, Hemant Sharma and C.V. Subba Rao for the Respondents.
The
Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave
granted.
In
1980 the appellant was working as an Accountant in the Photo Division of the
Ministry of Information and Broadcasting, New Delhi. By that time the appellant
had rendered more than 20 years' service. By the letter dated 24th of December,
1980 the appellant sought voluntary retirement from the service after having
completed more than 20 years' service. The said letter dated 24th of December,
1980 which was addressed to the Director, Photo Division, Ministry of
Information and Broadcasting stated, inter alia, as follows:"I beg to seek
voluntary retirement on 31.3. 1981. I had joined government service on 4th
August, 1958, thus I have completed more than 20 years service. My notice
period may please be treated W.E.F. 1.1. 1981.
The
appellant states that three months notice was required by the rules of service
to which the appellant belonged. The said voluntary retirement was sought under
Rule 48-A of the Central Civil Services (Pension) Rules, 1972 (hereinafter
referred to as 'the Pension Rules'). The Rule 48-A provides as follows:
"48-A.
Retirement on completion of 20 years' qualifying service:
1177
(1) At any time after a Government servant has completed twenty years'
qualifying service, he may, by giving notice of not less than three months in
writing to the appointing authority, retire from service.
(2)
The notice of voluntary retirement given under sub-rule (1) shall require
acceptance by the appointing authority.
Provided
that where the appointing authority does not refuse to grant the permission for
retirement before the expiry of the period specified in the said notice, the
retirement shall become effective from the date of expiry of the said
period." Sub-rule (4) of Rule 48-A prevents withdrawal of resignation
letter except with the approval of the authority. The said sub-rule (4-)
provides as follows:
"(4)
A Government servant, who has elected to retire under this rule and has given
the necessary notice to that effect to the appointing authority, shall be
precluded from withdrawing his notice except with the specific approval of such
authority." Acting on the basis of the letter of retirement, by an order
dated 20th of January, 198 1 the appellant was allowed to retire voluntarily
from service prospectively with effect from the afternoon of 31st March, 198 1.
The said order dated 20th January, 198 1 read as follows:
"Shri
Bal Ram Gupta, permanent Upper Division Clerk and officiating Accountant in the
Photo Division is allowed to retire voluntarily with effect from the afternoon
of 31st March, 1981, in accordance with the provisions contained in the
Ministry of Home Affairs, Department of Personnel and Administrative Reforms O
.M. No. 250 13 7 77 Estt. (A) dated 26th August, 1977." In the meantime,
however, the appellant states that on account of persistent and personal
requests from the staff members, the appellant had changed his mind and
consequently had by his letter dated 31st January, 1981 withdrawn his notice of
voluntary retirement. He stated in his letter that he had dropped the idea of
seeking voluntary 1178 retirement and he, therefore, requested the authorities
that his request for resignation might be treated as cancelled and the notice
given by him treated as withdrawn. The appellant, however, was not allowed to
do so. The appellant was relieved by an order dated 31st March, 1981. It was
stated in the said order that his request contained in the letter dated 31st
January, 1981 for withdrawal of his application for voluntary retirement "has
also been considered and found not acceptable".
The
appellant contended before the authorities and the High Court that in view of
his letter dated 31st January, 1981 seeking withdrawal of his letter of
resignation, the impugned order dated 31st March, 198 1 retiring the appellant
was illegal and invalid. The appellant, however, was asked to leave the office
immediately. The appellant was thereafter sent the gratuity form for claiming
his retiring benefits. The appellant met respondent No. 2 and requested him
that his case may be considered on merits and the department should not
"hush up" the matters like this but the same was to no avail. The
respondent No. 2, the Director, Photo Division, Ministry of Information and
Broadcasting clearly informed the appellant that in view of the activities of
the appellant in his capacity as the Secretary of the Photo Division Employees
Association (Registered), it had been found appropriate to "ease him
out" from the service. In spite of the several representations nothing
happened, the appellant moved the High Court by a writ petition. The Delhi High
Court dismissed the appellant's writ petition on the ground that the rule
enabled the government servant to withdraw his application for voluntary
retirement only with the approval of the Government. The approval had not been
given by the Government. According to the High Court the rule had been complied
with. The Government had considered afresh the application of the appellant and
Government found no reasons to interfere with the refusal to permit the
appellant to withdraw his resignation. The appellant thereafter has come up in
appeal to this Court.
The
facts, therefore, are that the appellant offered to resign from his service by
the letter dated 24th December, 1980 with effect from 31st March, 1981 and
according to the appellant his resignation would have been effective, if
accepted, only from 31st March, 1981. Before the resignation could have become
effective the appellant withdrew the application by the letter dated 31st of
January, 1981, long before, according to the appellant, the date the
resignation could have been effective. In the meantime, however, prior thereto
on the 20th of January, 1981 the respondent has purported to accept the
resignation with effect from 31st March, 1981. The appropriate rule sub-rule
(4) of 1179 Rule 48-A of the Pension Rules as set out hereinbefore enjoins that
a government servant shall be precluded from withdrawing his notice except with
the specific approval of such authority. The proviso stipulates that the
request for withdrawal shall be made before the intended date of his
retirement. That had been done. The approval of the authority was, however, not
given. Therefore, the normal rule which prevails in certain cases that a person
can withdraw his resignation before it is effective would not apply in full
force to a case of this nature because here the Government servant cannot
withdraw except with the approval of such authority.
Learned
counsel appearing for the appellant contended before us that this rule was bad
as violative of the Fundamental Rights of citizens. Challenge to the rule was
however not made before the High Court on this ground. He, however, contended
that if the rule be read as consistent with the constitutional requirements of
reasonableness which is well .accepted rule of construction, then the
Government could not withhold approval to the withdrawal of resignation without
any rhyme or reason. The counter-affidavit filed in this proceeding by Shri
Majgaonkar, who is the respondent No. 2 in this appeal reveals very little as
to why the sanction was withheld. It is stated in paragraph 5 of the said
affidavit that it was not in the knowledge of the respondent as to what
prompted the appellant to request the withdrawal. What is important in this
connection to be borne in mind is not what prompted the desire for withdrawal
but what is important is what prompted the government from withholding the
withdrawal. In this respect the government affidavit certainly lacks candour.
In appropriate cases where the Government desires that public servant who seeks
voluntarily to resign should not be allowed to continue, it is open to the
Government to state those reasons. There may be hundred and one situations
where a situation or opportunity like this may be used by the Government to
ease out a disgruntled or reluctant or troublesome employee. It was further
stated that there were guidelines which were laid down by the O.M. No.
24(57)-E-V-32 dated 24.12.1952 for considering and deciding in the matter of
accepting or refusing the withdrawals of notices of voluntary retirement.
What
part of the guidelines was violated by the appellant was not indicated or
spelled out in the said affidavit. We would advert to certain guidelines and
examine if these were violated later. It is only stated that the application
for withdrawal was considered in the light of the said guidelines and the
request was turned down appropriately. It was further stated that the notice of
termination of service or of retirement is a unilateral act whereby the officer
communicates his intention to dissolve the 1180 contract of service and unlike
resignation it operates without the consent of the other party. It is,
therefore, submitted that once notice was given it became operative
immediately, if it was received by the Government and automatically brought
about the dissolution of contract after the expiry of the notice period. We are
unable to accept this submission and this position. The dissolution would be
brought about only on the date indicated i.e., 31st of March, 1981, upto that
the -appellant was and is a Government employee. There is no unilateral
termination of the same prior thereto. He is at liberty, and entitled
independently without sub-rule (4) of Rule 48-A of the Pension Rules, as a
Government servant, to withdraw his notice of voluntary retirement. In this
respect it stands at par with letter of resignation.
This
question arose in the case of one Shri Satish Chandra, then a Judge in the High
Court of Allahabad in Union of India v. Shri Gopal Chandra Misra and others,
[1978] 3 S.C.R. 12. There the second respondent Shri Satish Chandra wrote to
the President of India, on May 7, 1977, intimating his resignation from the
office of Judge of the Allahabad High Court, with effect from 1st of August,
1977.
On
July 15, 1977, he again wrote to the President, revoking his earlier
communication, and commenced deciding matters in Court from July 16, 1977. On
1st of August, 1977 the first respondent Shri Misra, an advocate of the said
High Court filed a writ petition under Article 226 of the Constitution
contending that the resignation of Shri Satish Chandra having been duly
communicated to the President of India in accordance with Article 217(1)
Proviso (a) of the Constitution was final and irrevocable, and that the
continuance of said Shri Satish Chandra as a Judge of the High Court
thereafter, was an usurpation of public office. The High Court allowed the
petition holding that Shri Satish Chandra was not competent to revoke his
resignation letter. On appeal this Court held that the resigning office
necessarily involved relinquishment of the office which implied cessation or
termination of, or cutting as under from the office. A complete and effective
act of resigning office is one which severs the link of the resigned with his
office and terminates its tenure. In the context of Article 217(1) this assumes
the character of a decisive test, because the expression "resign his
office" occurs in a proviso which excepts or qualifies the substantive
clause fixing the office tenure of a judge upto the age of 62 years. It was
further reiterated that in the absence of a legal, contractual or
constitutional bar, an intimation in writing sent to the appropriate authority
by an incumbent, of his intention or proposal to resign his office/post from a
future specified date, can be withdrawn by him at any time before it becomes
effective i.e., before it effects termination of the tenure of the office/post,
or employment. This general 1181 rule equally applies to Government servants
and constitutional functionaries, this Court reiterated. The other peculiar
essence of Article 2 17 which was discussed need not detain us in the facts of
this case. On the principle of general law the offer to relinquishment could
have been withdrawn by the appellant before the date it became effective if
sub-rule (4) of Rule 48-A was not there.
In
Air India etc. etc. v. Nergesh Meerza & Ors. etc.
etc.,
[1982] 1 S.C.R. 438, there the Court struck down certain provisions of Air
India Employees Service Regulations. We are not concerned with the actual
controversy. But the Court reiterated that there should not be arbitrariness
and hostile discrimination in Government's approach to its employees. On behalf
of the respondent it was submitted that a Government servant was not entitled
to demand as of right, permission to withdraw the letter of voluntary
retirement, it could only be given as a matter of grace. Our attention was also
drawn to the observations of this Court in Raj Kumar v. Union of India, [1968]
3 S.C.R. 857. There the Court reiterated that till the resignation was accepted
by the appropriate authority in consonance with the rules governing the
acceptance, the public servant concerned has locus penitential but not
thereafter. Undue delay in intimating to the public servant concerned the
action taken on the letter of resignation may justify an inference that
resignation had not been accepted. But in the facts of the instant case the
resignation from the Government servant was to take effect at a subsequent date
prospectively and the withdrawal was long before that date. Therefore, the
appellant, in our opinion, had locus. As mentioned hereinbefore the main
question was whether the sub-rule (4) of Rule 48-A was valid and if so whether
the power exercised under the sub-rule (4) of Rule 48-A was proper. In the view
we have taken it is not necessary, in our opinion, to decide whether sub rule
(4) of Rule 48-A was valid or not. It may be a salutary requirement that a
Government servant cannot withdraw a letter of resignation or of voluntary
retirement at his sweet will and put the Government into difficulties by
writing letters of resignation or retirement and withdrawing the same
immediately without rhyme or reasons. Therefore, for the purpose of appeal we
do not propose to consider the question whether sub-rule (4) of Rule 48-A of
the Pension Rules is valid or not. If properly exercised the power of the
government may be a salutary rule. Approval, however, is not ipse dixit of the
approving authority. The approving authority who has the statutory authority
must act reasonably and rationally. The only reason put forward here is that
the appellant had not indicated his reasons for withdrawal.
This,
in our opinion, was sufficiently indicated that he was prevailed upon by his
friends and the appellant had a second look at the matter. This is 1182 not an
unreasonable reason. The guidelines indicated are as follows:
"(2)
A question has been raised whether a Government servant who has given to the
appropriate authority notice of retirement under the para 2(2) above has any
right subsequently (but during the currency of the notice) to withdraw the same
and return to duty.
The
question has been considered carefully and the conclusion reached is that the
Government servant has no such right. There would, however, be no objection to
permission being given to such a Government servant, on consideration of the
circumstances of his case to withdraw the notice given by him, but ordinarily
such permission should not be granted unless he is in a position to show that
there has been a material change in the circumstances in consideration of which
the notice was originally given.
Where
the notice of retirement has been served by Government on the Government
servant, it may be withdrawn if so desired for adequate reasons, provided the
Government servant concerned is agreeable." In this case the guidelines
are that ordinarily permission should not be granted unless the Officer concerned
is in a position to show that there has been a material change in the
circumstances in consideration of which the notice was originally given. In the
facts of the instant case such indication has been given. The appellant has
stated that on the persistent and personal requests of the staff members he had
dropped the idea of seeking voluntary retirement. We do not see how this could
not be a good and valid reason. It is true that he was resigning and in the
notice for resignation he had not given any reason except to state that he
sought voluntary retirement. We see nothing wrong in this. In the modern age we
should not put embargo upon people's choice or freedom. If, however, the
administration had made arrangements acting on his resignation or letter of retirement
to make other employee available for his job, that would be another matter but
the appellant's offer to retire and withdrawal of the same happened in so quick
succession that it cannot be said that any administrative set up or management
was affected. The administration has now taken a long time by its own attitude
to communicate the matter. For this purpose the respondent is to blame and not
the appellant.
We
hold, therefore, that there was no valid reason for withholding the permission.
By the respondent. We hold further that there has been compliance with the
guidelines because the appellant has indicated that there was a change in the
circumstances, namely, the persistent and personal requests from the staff
members and relations which changed his attitude towards continuing in
Government service and induced the appellant to withdraw the notice. In the
modern and uncertain age it is very difficult to arrange one's future with any
amount of certainty, a certain amount of flexibility is required, and if such
flexibility does not jeopardize Government or administration, administration
should be graceful enough to respond and acknowledge the flexibility of human
mind and attitude and allow the appellant to withdraw his letter of retirement
in the facts and circumstances of this case. Much complications which had
arisen could have been thus avoided by such graceful attitude. The court cannot
but condemn circuitous ways "to ease out" uncomfortable employees. As
a model employer the government must conduct itself with high probity and
candour with its employees.
In
the aforesaid view of the matter, we are unable to sustain the judgment and
order of the High Court of Delhi dated 13th of July, 198 1 and the same are,
therefore, set aside. The appeal is accordingly allowed with costs and the
appellant is entitled to be put back to his job with all the consequential
benefits being treated as in the job from 31st of March, 1981.
P.S.S.
Appeal allowed.
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